[HISTORY: Adopted by the City Council of the City of Hackensack 11-25-2013 by Ord. No. 23-2013. Amendments noted where applicable.]
The City of Hackensack ("City") hereby creates a City Public Records Policy governing public records as determined by the Open Public Records Act (OPRA), N.J.S.A. 47:1A-1 et seq. Nothing in this chapter shall require the certification, reproduction, or issuance of any copy of any record unless said record is a public record.
As used in this chapter, the following terms shall have the meanings indicated:
- A. Pursuant to N.J.S.A. 47:1A-1.1, "government record," hereinafter "public record," means any paper, written or printed book, document, drawing, map, plan, photograph, microfilm, data-processed or image-processed document, information stored or maintained electronically or by sound recording or in a similar device, or any copy thereof, that has been made, maintained, received, or kept on file in the course of official business by any officer, commission, agency or authority of the City or of any political subdivision thereof.
- B. "Public record" does not mean:
- (1) Records of a personal nature regarding City officials, employees and/or other applicable individuals;
- (2) Medical records of City officials, employees and/or other applicable individuals;
- (3) All records exempted by state and/or federal statutes, rules and/or regulations;
- (4) All records exempted by presidential and/or gubernatorial executive order;
- (5) Confidential police investigation reports;
- (6) Work product or notes of City officials/employees;
- (7) Council closed-session minutes involving personnel matters. Council open-session minutes shall not be considered public records until such time as they are approved by the City Council. Council closed-session minutes, other than involving personnel matters, shall not be considered public records until such time as they are approved by the City Council and the matter(s) in question have been concluded pursuant to the provisions of N.J.S.A. 10:4-6 et seq. A report prepared for review by the Mayor and City Council shall not be deemed a public record until at least seven calendar days after disbursement of the report by the City Clerk to the Mayor and Council or the next Council meeting, whichever is later; and
- (8) All records which are not included in the definition of "government records" and are deemed to be confidential pursuant to N.J.S.A. 47:1A-1 et seq., where applicable.
Record series. Records should be retained, categorized, and inventoried by record series. "Record series" is a group of identical or related records that are filed together and can be evaluated as a unit to determine their retention period. Within a record series, there is no reason to know who generated or received the record, nor what subject matter was discussed; only the general function and overall content of the records.
Inventory. Record series should be complied into a list, or "inventory," with descriptions and supporting information for each record series.
Record retention schedules. Every record series must be assigned a retention period and method of final disposition.
Disposition. Pursuant to the retention schedule, records may be physically destroyed or transferred to another location. Where records are earmarked for destruction, the Clerk must submit a Request and Authorization for Records Disposal form to ensure that the records have outlived their value to the public.
E-mails are not exempt from OPRA regulations. The message sent through the electronic medium constitutes a public record, unless the subject matter within the electronic submission falls within an OPRA exemption. The retention or disposition of same is based on the information it contains or the purpose the message serves.
Nonrecord messages. E-mail messages that do not meet the definition of "public record" pursuant to § 35-2 and as defined by OPRA are not public records. These messages may be deleted at any time unless they become part of any official record.
Transient messages. Transient messages include e-mail messages that have little administrative value, do not set policy, do not establish guidelines or procedures, do not certify a transaction, and do not become a receipt. These messages should be retained until they are no longer of administrative value and then destroyed.
Intermediate messages. Intermediate messages have more significant administrative, legal, or fiscal value than transient messages but do not fall into the "permanent" category. These messages should be retained for the appropriate period of time set forth in the records retention schedule approved by the State Records Committee or the General Retention Schedule.
Permanent messages. Permanent messages have significant administrative, legal, or fiscal value. They should be further defined by a) executive correspondence; b) departmental policies and procedures; and c) minutes of boards, commissions, and other official bodies. These messages should be retained permanently, with the exception of executive correspondence, which need only be retained for three years, at which time it should be transferred to archives.
The City Clerk shall be the municipality's custodian of records. She shall ensure that all public records are readily accessible. The custodian has a duty to search the files and find the government records specifically identified in the request.
Each department shall designate a department custodian to serve as liaison between the Clerk and his respective department. Each department custodian shall timely respond to the Clerk's request for any records the department may possess so that the Clerk may respond to requests, pursuant to § 35-6.
The Clerk shall document all attempts to access records from other departments or personnel. If the Clerk has not received the documents within the time required to respond to the request, the Clerk shall inform the requestor of all attempts make to access the documents. The Clerk will not be responsible if another employee obstructs access so long as she can prove that attempts were made to access the records.
The municipality shall make available an OPRA request form to facilitate citizen's filing of requests. This form must include:
Space for the name, address, and phone number of the requestor;
Space for a brief description of the government record sought;
Space for the custodian to indicate which record will be made available, when the record will be available, and the fees to be charged;
Specific directions and procedures for requesting a record;
A statement as to whether prepayment of fees or a deposit is required;
The time period within which the public agency is required by OPRA and § 35-6 to make the record available;
A statement of the requestor's right to challenge a decision by the public agency to deny access and the procedure for filing an appeal;
Space for the custodian to list reasons if a request is denied in whole or in part;
Space for the requestor to sign and date the form; and
Space for the custodian to sign and date the form if the request is fulfilled or denied.
All requests should be made using the form approved by the City; however, the Clerk shall not deny a valid request solely because it was not made on the City's request form.
All requests shall be directed to the City Clerk in her position as custodian of records. Any department heads or other City officials/employees in receipt of a request other than the City Clerk shall immediately direct the request to the City Clerk's office, which will serve as the repository of such requests and the dissemination of said forms to obtain public records not within the Clerk's control/possession.
A valid request must:
Upon receipt of a request for public records, the Clerk will endeavor to respond to said request within five business days of the receipt of said request. "Business days" are defined as Monday through Friday, excluding holidays and weekends.
Pursuant to OPRA, the Clerk shall respond to all requests within seven business days of her receipt. Where a request was first delivered to another employee and subsequently directed to the Clerk, the seven-day period shall not begin to run until the Clerk receives the request.
Where the Clerk needs additional time to respond to requests, she shall request same in writing within seven days of receipt of request. Requests for additional time must provide a legitimate reason for make such request and must provide an anticipated date upon which records will be provided.
The Clerk shall respond to requests made anonymously when the requestor appears before the Clerk to receive the response.
Failure to respond within seven days or by the later date requested by the Clerk will be deemed a denial of the request.
Not all requests for public records do, in fact, lead to the copying, review and/or release of such records. A public record may be a public record under common law but may not be a public record under N.J.S.A. 47:1A-1 et seq., or vice versa, or it may be or may not be a public record under any other legal statute, rules, regulation and/or court decision. The City Clerk shall seek the opinion of the designated City Attorney as to whether or not a record is public if there is any question as to its potential copying, review, and/or release. The City Clerk's actions on this type of matter shall be guided by such legal opinion.
Medium conversion. The Clerk shall permit access to the records in the medium requested. If records are not maintained in the requested medium, the Clerk must convert the records to the requested medium at the cost of the requestor, based on the charges set forth in § 35-9.
Immediate access and office hours. The Clerk shall permit immediate access to budgets, bills, vouchers, contracts, and government salary information to be inspected, examined, or copied by any person during the regular business hours. If immediate access cannot be provided, the Clerk must provide a legitimate reason in writing as to why they are not immediately available. Legitimate reasons include the documents being in storage or in use or the requestor has requested a medium conversion. All other documents, if access will be granted, should be provided pursuant to § 35-6.
Denying access. The Clerk shall specifically state in writing any reason for which the request has been denied. A request may be denied in whole or by redaction.
Access may be denied for the following reasons:
Documents fall within an OPRA exemption. The specific exemption must be stated in the denial;
The request was overly broad. Records that are overly broad or do not specify identifiable records thereby requiring the Clerk to research on behalf of the requestor will be denied; or
The request would cause a substantial disruption to agency operations. Before denying access on this basis, the Clerk must first attempt to reach a reasonable solution with the requestor that accommodates the interests of both parties.
Seeking clarification. A Clerk may seek, in writing within seven days of receipt of original request, clarification of an overly broad or unclear request.
The Council may from time to time, by resolution and pursuant to OPRA, establish fees to be charged to any person applying to copy any municipal record which he may be legally entitled to copy or utilize the services of municipal employees.
All requests for public records, except for requests by City employees/officials acting in their official capacity and nonprofit organizations, shall be subject to the City's policy as to copying costs:
Letter size pages or smaller: $0.05 per page.
Legal size pages or larger: $0.07 per page.
Faxes and e-mails: free of charge.
Other materials (CD, DVD, etc.): actual cost of material.
All videotape reproduction shall be subject to a copying fee of $10 for each reproduced tape. All videotapes are to be supplied by the person making such a request. If an individual/entity does not supply a tape for recording, no such reproduction will occur.
Special service charges may be charged for extraordinary requests. Extraordinary requests include providing copies that cannot be reproduced by ordinary copying equipment in ordinary business size or accommodating requests that involve an extraordinary expenditure of time and effort. Charges must be reasonable and must reflect the actual direct cost, meaning the hourly rate of the lowest-level employee capable of fulfilling the request.
Requestors denied access to records may either file a complaint in Superior Court within 45 days of denial of access or file a complaint with the Government Records Council at any time after access has been denied. An appeal may be filed with either, but not both.
Pursuant to N.J.S.A. 47:1A-11, any public official, employee, or custodian who knowingly and willfully violates OPRA and unreasonably denies access to records will be personally fined $1,000. This fine cannot be paid by the City or agency.